Adherence to strict term time holiday rules upheld

06 April 2017

The Supreme Court has overturned the interpretation of "fails to attend regularly" accepted by magistrates and the Divisional Court in a case where a father took his child out of school for a one-week unauthorised holiday, claiming that his child's attendance rate overall was high.

Delivering the Supreme Court's judgment, upholding the appeal by the local education authority, Lady Hale stated that section 444(1) of the Education Act 1996 provides that if a child of compulsory school age "fails to attend regularly" at the school where he is a registered pupil, his parent is guilty of an offence. The Council appealed on the issue of whether the magistrates had been entitled to take into account attendance at school outside the period of the absence.

The issue in the appeal was the correct interpretation of that expression. Lady Hale explained that the history of the provision showed that before 1944 it was well established that the offence of failing to cause a child to attend school without a reasonable excuse could be committed by a single day’s absence. The Education Act 1944 replaced the concept of reasonable excuse with a closed list of circumstances in which absence was permitted, and provided that the offence would be committed if the child failed to attend school "regularly". This provision was reproduced in the Education Act 1993 and was now found in section 444(1) of the 1996 Act.

Lady Hale said that "regularly" has at least three possible meanings in this provision: it could mean (a) evenly spaced; (b) sufficiently often; or (c) in accordance with the rules. Giving a number of possible examples, the Supreme Court considered that the first could not apply and that the second interpretation is far too uncertain to found a criminal offence. A parent would not know on any given day whether removing the child from school is a criminal offence. Further, there are sound policy reasons for rejecting this interpretation because of the disruptive impact of the absence for the education of the individual child and of the other pupils. It permitted an approach to rule keeping which no educational system could be expected to find acceptable.

The word "regularly" must therefore mean "in accordance with the rules prescribed by the school".

The Council's appeal was unanimously allowed and the case remitted to the magistrates court for further determination.